The Supreme Court's recent 5-4 decision in Vieth v. Jubelirer rejected a challenge to politically gerrymandered districts for Pennsylvania's delegation to the U.S. House of Representatives. In so doing, the decision seemingly gave state legislatures and governors the green light--at least for now--to continue using sophisticated computer databases to draw electoral district lines in ways that consistently undermine principles of democratic government.

But the apparent green light may prove to be a yellow light. Justice Scalia's opinion announcing the judgment of the Court only attracted four votes: his own plus those of Chief Justice Rehnquist and Justices O'Connor and Thomas. The fifth and decisive vote for the result in the case came from Justice Kennedy--who endorsed the result, but whose "swing vote" was based on a different view of the law.

Kennedy agreed with the other four justices in the majority that no "judicially discoverable and manageable standards" had yet been proposed for the adjudication of partisan gerrymandering claims--and therefore that the plaintiffs' challenge to the Pennsylvania apportionment plan must fail. But unlike the four, he also left open the possibility that future plaintiffs in future cases might offer a constitutionally satisfactory standard.

Will the slim hope Justice Kennedy offered those who would challenge partisan gerrymandering prove to be a false hope? That remains to be seen. But in the meantime, no one should read the Vieth decision as a clean bill of health for our increasingly nasty and partisan politics.

The Apparent Issue in Vieth: Partisan Gerrymandering

As Edward Lazarus explained in an earlier column on this site, recent advances in computer technology have enabled politicians to draw electoral maps in ways that all but assure the election of their favored candidates.

Consider Pennsylvania's example. As a whole, the state is more or less evenly split between Democratic and Republican voters. But both houses of the legislature and the statehouse were in Republican hands when these bodies set about redistricting after the 2000 census. As a result, these bodies were able to create relatively safe seats for Republicans in nearly two thirds of the state's federal districts. Thus, a state that is actually about one-half Republican is represented as if it were about two-thirds Republican.

As Lazarus and others have noted, partisan gerrymandering--along with the practice of gerrymandering to protect incumbents--has reduced to a handful the number of Congressional districts in which truly competitive elections occur. How are these safe seats for Republicans and Democrats created? Generally, either voters are "packed" into the representatives' districts, or the representatives benefit from political gerrymandering in states where they control the legislative process.

And the problem isn't just that elections aren't competitive. It is also that having "safe" seats that are, in effect, uncontested, tends to result in the election of representatives who skew towards the parties' respective extremes. And that, in turn, leads to polarization, rather than moderation and compromise, in Congress.

For most observers, therefore, Vieth was a case about the health of our democracy. Would the Court recognize the threats to self-rule from non-competitive elections and sharp partisan division?

The Court Views the Issue Through the Lens of the "Political Question" Doctrine

In the Supreme Court, however, the issue was posed somewhat differently. The Justices saw the question as one of jurisdiction.

For them, the issue was whether the Supreme Court--as opposed to Congress or the states themselves--was the appropriate institution to address the problems arising out of political gerrymandering.

Their answer was "no," or, given Justice Kennedy's crucial fifth vote, perhaps "not yet." Justice Scalia's opinion for a plurality of the Court concludes that political gerrymandering cases present what's known in constitutional doctrine as a "political question."

The basic concept of a political question is simple enough: The Constitution either explicitly or implicitly assigns to a political branch of government, rather than to the courts, some constitutional questions. (The political question doctrine is a subset of the general doctrine of justiciability--whether a given legal question ought to be addressed by a court.)

For example, in the 1993 case of Nixon v. United States, the Court found that a federal judge who challenged the process by which the Senate had removed him from office, following his impeachment by the House, raised a political question. The Senate, not the Court, the Justices said, gets to decide what procedures are proper in this circumstance.

Why does the Senate have the power? The Constitution assigns to the Senate "the sole power to try all impeachments," and that assignment, the Court ruled, included the final authority to determine what counts as a trial.

Accordingly, the Justices refused to entertain former Judge Nixon's argument that the Senate acted impermissibly when it assigned the task of hearing evidence to a committee whose report went to the full Senate, rather than taking evidence on the Senate floor itself.

The Murky Line Between Political Questions and Justiciable Cases

If Nixon was a relatively easy case, the application of the political question doctrine has often been unclear. In the leading precedent, the 1962 decision in Baker v. Carr, Justice Brennan, speaking for the Court, distilled the prior political question cases into a six-factor test.

The first factor--whether the Constitution's text demonstrably commits the issue to another branch--seems the easiest to apply. In the Nixon case, for example, the Constitution's text pointed to the Senate, rather than the Court.

In Vieth, Justice Scalia suggests that the first Baker factor renders all political gerrymandering claims political questions. He points out that under the Constitution, Congress has the authority to "alter such Regulations" regarding federal election districts that the states initially make. If Congress has that power, Justice Scalia's opinion indicates, then the Court lacks it.

But this argument cannot be dispositive because Baker itself involved a claim that a state had abused the power of drawing district lines. In Baker the Court ruled that a challenge to Tennessee's gross deviation from the principle of one-person-one-vote in drawing district lines didnot present a political question.

The substance of the claims in Baker and Vieth was different, but the relevant constitutional text was the same. And Congress's power to alter state regulations of federal election districts was not exclusive of judicial inquiry in Baker. So why should it have been in Vieth?

Are There Judicially Discoverable and Manageable Standards to Measure Political Gerrymandering Claims?

Because the constitutional text was not dispositive in Vieth,the critical issue there was the second Baker factor: whether there are "judicially discoverable and manageable standards for resolving" claims of political gerrymandering. The plurality in Vieth said there were neither, and therefore concluded the case presented a political question.

What are "judicially discoverable and manageable standards"? Discoverable standards are those that can be traced to the Constitution's text, structure, history and so forth, such that the courts can honestly say that their decision is guided by law, rather than made up out of whole cloth. Manageable standards are those that lead to predictable and sensible results, such that actors (like state legislatures) subject to them can conform their conduct to law.

In a 1986 case, Davis v. Bandemer, the Court ruled that political gerrymandering cases did not present a political question, but the Justices disagreed on the relevant standard. In the interim period between Bandemer and Vieth, the lower courts interpreted Bandemer as setting so difficult a standard that no electoral district has been declared unconstitutional as the product of political gerrymandering. And in Vieth, the plurality concluded that Bandemer should be overruled.

There are no judicially discoverable standards, the Vieth plurality concluded, because everyone acknowledges that some political matters may legitimately be considered in apportionment decisions. To draw a line beyond which politics have played too great an influence, the plurality said, would be arbitrary. That line would not be rooted in the Constitution, and thus not judicially discoverable.

Likewise, the plurality in Vieth said, none of the tests for "too much politics" were manageable. The root problem, as Justice Scalia saw it, is that there is no neutral baseline against which to measure whether a political group has been deprived of political power to which it is otherwise entitled.

Party registration figures, results from statewide elections, and the like, he noted, do not necessarily tell us how people would have voted in particular Congressional district elections had the lines been drawn differently.

Was the Plurality in Vieth Right?

The Vieth plurality opinion is not wholly persuasive. It is true that to "discover" a relevant constitutional standard, the Court would have had to, in effect, make one up. But of course that's true in nearly every area of constitutional law where the Constitution's text speaks in majestic generalities.

For example, the Court's equal protection cases say that certain "suspect classifications" identified by the Court trigger "strict scrutiny"--a term invented by the Court to capture the inquiry into whether a state has adopted the "least restrictive means" of advancing a "compelling state interest."

Likewise, the Court has discovered a principle of "state sovereign immunity" that bars individuals from suing states without their consent, with an important exception. Individuals can be authorized to do so if Congress enacts a law that is "congruent and proportionate" to what the Justices themselves, under tests of their own devising, would consider a violation of the Fourteenth Amendment.

None of the words in quotation marks in the previous two paragraphs are found in the Constitution itself; yet that has not stopped the Court from "discovering" them in the Constitution. One might, of course, think that certain of these tests are misguided, and perhaps that is what the Vieth plurality thinks. But if that is so, they ought to acknowledge that their analysis would require them to overturn most of modern constitutional law.

What about manageability? The plaintiffs and dissenters in Vieth argued that standards for political gerrymandering are manageable because they can simply be borrowed from a parallel line of cases--those in which the Court has said that racial gerrymandering is unconstitutional.

But the Vieth plurality rejected the race analogy, on the ground that whereas race is a generally impermissible criterion in government decisionmaking, politics is not. There is a vast difference, the plurality said, between discerning whether an impermissible factor like race has been used, and discerning whether "too much" of a permissible factor like politics has been used.

That is a fair point, but it seems largely to overlook the fact that the Court's racial gerrymandering cases do not ask simply whether race has been used as a factor in districting. Instead, they ask whether race was the "predominant" factor--that is, whether "too much" race has been used.

The inquiries in racial and political gerrymandering cases thus do seem quite similar--and the dissenters seem to have the better of this argument.

What Next for Political Gerrymandering Cases? A Process Proposal

In the wake of Vieth, what should friends of democracy do to challenge political gerrymandering?

The Vieth plurality suggests that they should take their case to Congress. Yet as the Vieth plurality itself also notes, the very Pennsylvania districts challenged in the case were created under pressure from "prominent national figures in the Republican Party." How likely is it that the national legislature will be sympathetic to a campaign to end political gerrymandering?

The other option is to take Justice Kennedy at his word, and to try to devise a standard for judging political gerrymandering claims that he (and presumably the four Vieth dissenters) would deem manageable.

I'll do my bit here by championing one such standard that my Columbia Law School colleague Professor Samuel Issacharoff has advocated: Political gerrymandering claims should be closely scrutinized unless the electoral districts were themselves drawn by a nonpartisan body, as occurs in some states.

It is a basic principle of American constitutional law that in some circumstances, actors who are not politically accountable are better positioned to make the ground rules for those who are. Thus, we generally trust the courts to interpret the constitutional ground rules for politics because we think they are more likely to try to do the job fairly than are self-interested political actors. Even if the courts occasionally disappoint us by rendering what appear to be political judgments in the name of law, we can be certain that politicians will more often render political judgments, for that is the nature of their business.

Applying this principle to the political gerrymandering context would mean that states should be given an incentive to turn their districting process over to bodies that stand at least at one remove from politics. And that is exactly what adoption of Professor Issacharoff's standard would strongly encourage.

More competitive elections, and better government, would likely result. And surely a standard of law that produces such an outcome ought to count as "discoverable" in the Constitution.

Michael C. Dorf is Professor of Law at Columbia University. His new book, Constitutional Law Stories, is published by Foundation Press, and tells the stories behind fifteen leading constitutional cases.